REGULATION OF HEALTH PRACTICE

Prof Ames Dhai

Introduction

• Constitution

• Statutes (Acts of Parliament) www.dpsa.gov.za

• Common Law

• Criminal Law

• Civil Law

Constitution – Bill of Rights

• S9 – Equality• S10 – Human Dignity• S11 – Life• S12 – Freedom and Security of persons• S14 – Privacy• S15 – Freedom of religion, belief and opinion• S16 – Freedom of expression• S24 – Environment• S27 – Health care• S28 – Children• S32 – Access to Information• S36 – Limitation of Rights

Regulatory Body

• Health Professions Act – HPCSA → controls training, registration and practice

• Guideline Books: www.hpcsa.co.za

• Regulations : Government Gazette - August 2006

National Health Act

• Provides framework for uniform health system• Chapter 2

• Emergency treatment• Informed consent• Confidentiality

• Chapter 8• control of use of blood, blood products, tissues, gametes

• Chapter 9• research

Children

• Child Care Act

• Children’s Act

• Best Interests of Child Principle

• Reporting of Child Abuse

Child Care Act 74 of 1983 – s39(4)• “Any person over the age of 18 years shall be competent to consent, without

the assistance of his parent or guardian, to the performance of any operation upon himself; and

• Any person over the age of 14 years shall be competent to consent, without the assistance of his parent or guardian, to the performance of any medical procedure on himself or his child

• Where parents, guardians can’t be found / refuse consent, Minister of Health, if satisfied after inquiry that treatment is necessary, may consent

• Emergency – where no time to postpone treatment to consult with parent / legal guardian, consent by medical manager.

• HIGH COURT UPPER GUARDIAN OF MINORS

Children’s Act - Consent

• Medical treatment on self or child if:• > 12yrs and• Is of sufficient maturity and• Has mental capacity to understand benefits, risks,

social & other implications of treatment

Children’s Act - Consent

• Surgical treatment on self or child if:• >12,and• Sufficient maturity & has mental capacity to

understand benefits, … AND• Child is duly assisted by parent / guardian

Children’s Act - Consent

• < 12 :• Medical management: parent, guardian, caregiver

• Surgical management: parent, guardian

Children’s Act - Consent

• Medical manager may consent if: • Management is necessary to preserve life or save

child from serious /lasting physical injury or disability AND

• Need for treatment so urgent that it cannot be deferred for purpose of obtaining parent / guardian consent

Children’s Act - Consent

• Ministerial consent if parent or guardian:• Unreasonably refuses • Is incapable of giving or assisting child consent• Cannot readily be traced• deceased

Children’s Act - Consent

• A High Court or Children’s Court may consent to treatment in all instances where any other person that may give consent refuses or is unable to do so

Mental Health Care Act

• Provide for care, treatment and rehabilitation of persons who are mentally ill

• Set out procedures to be followed for admission of these patients

• Provides for establishment of Review Boards

• Provides for care and administration of property of mentally ill

Choice of Termination of Pregnancy Act

• TOP request

• Trimester ruling

• Offense

Medical Malpractice & Professional Negligence

• Malpractice: • wrongful acts causing injury or harms to patients – either

intentional or negligent

• Professional negligence: • expected to exercise degree of skill & care of reasonably

skilled person in field• “reasonable” determined by courts taking general level of

skill & care possessed & exercised by members of the branch of the profession to which practitioner belongs

• Standard of Care Test:• How would a reasonably competent practitioner in that

branch of medicine have acted in a similar situation?• Would a reasonable practitioner have foreseen the likelihood

of harm to the patient & taken steps to guard against it happening? If so, the doctor would have acted negligently

MATERIAL RISKS

• Reasonable person in the patient’s position if warned of the risk would regard it as important; and

• Medical practitioner should be reasonably aware that the patient if warned of the risk would regard it as important

• Therapeutic Privilege

STUDENT CONDUCT

• Student shall:• Obey lawful orders given to him / her by academic & support

staff• Comply with rules prescribed for the use of libraries• Comply with Code of Conduct for use of Computer Facilities”

• Student shall not:• Bring alcohol to University unless has written permission of

Registrar• Smoke where smoking is prohibited, at lecture, seminar,

tutorial, laboratory• Reproduce, distribute notes provided by University without

permission of staff member concerned• Use cell phone during academic period – lecture, seminar,

tutorial or exam